ABSTRACT
Paradoxically, neither those mentally disordered offenders with high capacity, namely those with various forms of personality disorder, nor those with very low or even absent capacity, namely those with various states of automatism which get classed as insanity by the law, fully escape the consequences of their actions. Perhaps this is right. And it certainly feels right for those who do not readily acknowledge a causal link between mental disorder and crime, in that the justifi cations for dealing with those individuals differently are less persuasive. Thus, why should the presence of a mental disorder result in preferential treatment within the criminal justice system when the existence perhaps of an impoverished upbringing or on-going poverty would not be deemed relevant? These are, of course, issues that may go personally to mitigate the severity of punishment, and there are compelling arguments that we need a more consistent approach to the relevance of such personal mitigation; but they should not go to culpability in the absence of an established causal link. However, for those individuals who believe that there is a causal link between mental disorder and offending, or who believe there might be one in specifi ed circumstances in particular individuals, the failure fully to absolve those lacking in capacity, or the active imposition of compulsory treatment on those who have infringed the criminal law with capacity, seems anomalous. And this perhaps arises from our differential approach to establishing the presence of criminal culpability (which requires a very high threshold of doubt to be crossed with signifi cant protections for the accused to prevent it being crossed unjustifi ably) and diagnosing the presence of a disorder (which appears to be done with a less rigorous application of a threshold of doubt). No doubt the latter is variously justifi ed because the receipt of a diagnosis is not generally regarded as bringing with it signifi cant additional negative consequences for the individual, over and above those the disorder itself inevitably entails. The fact that criminal culpability is assessed at one point in time, and on the basis of a high threshold, will make for an uncomfortable fi t with the diagnosis of mental disorder; mental disorder is more obviously long-term
in its presentation, albeit that this may vary considerably in severity and form over time. And achieving a better fi t between the two might be achieved were a more nuanced approach to diagnosis adopted. That the time has come for just such an approach has been advocated by Professor David Goldberg who has remarked that when the terms of DSM-V are fi nally agreed it should be recognised that there are gradations within disorders: not all of those experiencing only some of the symptoms, or some of the symptoms but to an insuffi cient degree, should be given the label of the diagnostic category.1 And if there are gradations, there may be gradations within the alleged link between mental disorder and crime, making the relationship even more complicated than it is perhaps by some currently understood to be.
